Balaji judgement poverty social backwardness reservation exception and more than 50% fraud on constitution

 Poverty is also social backwardness

   In hint section

The  backwardness  under  Art. 15 (4)  must  be  social  and educational.  It is not either social or educational, but it is both social and educational.  Though caste in relation to Hindus  may be a relevant factor to consider in  determining the social backwardness of groups or classes of citizens, it cannot be made the sole or dominant test.  There are certain sections  of  Indian  society  such  as  Christians,  Jains, Muslims,  etc., who do not believe in caste system, and  the test  of  caste does not apply to  them.   Moreover,  social backwardness  is  in  the Ultimate analysis  the  result  of poverty to a very large extent. 442 The   classes   of   citizens  who   are   deplorably   poor automatically  socially backward.  Moreover, the  occupation of citizens and the place of their habitation also result in social  backwardness.   The problem of determining  who  are socially backward classes, is undoubtedly very complex,  but the  classification  of socially backward  citizens  on  the basis of their castes alone is not permissible under Art. 15 (4). 

Educational backwards

In  determining the educational backwardness of a  class  of citizens,  the literacy test supplied by the Census  Reports is not adequate.  It is doubtful if the test of the  average of  the  student population in the last  three  high  school classes   is   appropriate   in   determining    educational backwardness.   Io any case, the State is not  justified  in including,  in  the  list  of  backward  classes  castes  or communities whose average of student population per thousand is  slightly  above  or very near or just  below  the  State average.  The legitimate view to take is that the classes of citizens  whose average is well or substantially  below  the State average can be treated as educationally backward.   It is not for this Court to lay down any hard and fast rule  in this  matter.   It is the duty of the State  to  decide  the matter in a manner which is consistent with the requirements of Art. 15 (4). The  division  of backward classes into  two  cate

Judjment section

Social and educational babackwardness

Let us take the question of social backwardness first. By what test should it be decided whether a particular class is socially backward or not ? The group of citizens to whom Article 15(4) applies -ire described as 'classes of citizens', not as castes of citizens.A class, according to the dictionary meaning, shows division of society according to status, rank or caste. I In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizen. Though according to sociologists and Vedic scholars, the caste system may have originally begun on occupational or functional basis, in course of time, it became rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later over-burdened with considerations of purity based on ritual concepts, and that led to its ramifications which introduced inflexibility and rigidify. This artificial growth inevitably tended to create a feeling of superiority and inferiority and to foster narrow caste loyalties. Therefore, in dealing with the question as to whether any class of citizens is socially backward or not, it may not be irrelevant to consider the caste of the said group of citizens. In this connection, it is, however, necessary to bear in mind that the special provision is contemplated for classes of citizens and not for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should not be exaggerates. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may not always be logical and may perhaps contain the vice of perpetuating the caste themselves. Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do not recognise castes In the conventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or jains, or even Lingayats are socially backward or not ? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups in toto from the operation of Art. 15(4). It is not unlikely that in some States some Muslims or Christians or jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to consider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty, to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do not enjoy a status in society and have, therefore, to be content to take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by considerations of caste to which the poor citizens may belong, but that only shows The relevance of both caste and poverty in determining the backwardness of citizens. The occupations of citizens may also contribute to make classes of citizens socially backward. There are some occupations which are treated as inferior according to conventional beliefs and classes of citizens who follow these occupations are apt to become socially backward. The place of habitation also plays not a minor part in determining the backwardness of a community of persons. In a sense, the problem of social. backwardness is the problem of Rural India and in that behalf, classes of citizens occupying a socially backward position in rural area fall within the purview of Art. 15(4). The problem of determin- ing who are socially backward classes is undoubtedly very complex. Sociological, social and economic considerations come into play in solving the problem and evolving proper criteria for determining which classes are socially backward is obviously a very difficult task; it will need an elaborate investigation and collection of data and examining the said data in a rational and scientific way. That is the function of the State which purports to act under Art. 15(4). All that this Court is called upon to do in dealing with the present petitions is to decide whether the tests applied by the impugned order are valid under Art. 15(4). If it appears that the test applied by the order in that behalf is improper and invalid, then the classification of socially backward classesbased on that test will have to be held to be inconsistent with the requirements of Art. 15(4). What then is the test applied by the State in passing the impugned order ? We have already seen that the Nagan Gowda Committee appointed by the State was inclined to treat the caste as almost the sole basis in determining the question about the social backwardness of any community. The Committee has no doubt incidentally referred to the general economic condition of the community as a contributory factor; but the manner in which it has enumerated the backward any more backward classes leaves no room for doubt that the predominant, if not the sole, test that weighed in their minds was the test of caste. When we consider the impugned order itself. the position becomes absolutely clear. The impugned order has adopted the earlier order of July 10, 1961, with some changes as to the quantum of reservation, and so, it is necessary to examine the earlier order in order to see what test was applied by the State in classifying the backward Classes. In its preamble, the order of July 10, 1961, clearly and unambiguously states that the Committee had come to the conclusion that in the present circumstances, the only practicable method of classifying the Backward Classes in the State is on the basis of castes and communities and the State Government accepts this test. In. other words, on the order as it stands there can be no room for doubt that the classification of backward and more backward classes was made by the State Government only on the basis of their castes which basis was regarded as a practicable method. It is true that in support of the inclusion of the Lingayats amongst the Backward Classes the order refers to some other factors, but neither the Report of the Nagan Gowda Committees, nor the orders passed by the State Government on July 10, 1961, and July 31, 1962, afford any indication as to how any test other than that of the caste was applied in deciding the question. The learned Advocate-General has contended that the statement in the preamble of' the order of July 10, 1961 should not be literally construed and he has argued that the words used in the relevant portion are inartistic and he has suggested that the order is not based on the sole basis of castes. We are not impressed by this argument. We have considered both the orders in the light of the Report' and the recommendations made by the Nagan Gowda Committee and we are satisfied that the classification of the socially backward classes of citizens made by the State proceeds on the only consideration of their castes without regard to the other factors which are undoubtedly relevant. If that be so, the social backwardness of the communities to whom the impugned order applies has been determined in a manner which is not permissible under Art. 15(4) and that itself would introduce an infirmity which is fatal to the validity of the said classification. The next question to consider is in regard to the educational backwardness of the classes of citizens. The Nagan Gowda Report and the impugned order proceed to deal with this question on the basis of the average of student population in the last the High School classes of all High Schools in the State in relation to a thousand citizens of that community. On the figures supplied to the Committee which admittedly are approximate and not fully accurate, the Committee came to the conclusion that the State average of student population in the last three High School classes of all High Schools in the State was 69 per thousand. The Committee decided that all Castes whose average was less than the State average of 6.9 per thousand should be regarded as backward communities, and it further held that if the average of any community was less than 50% of the State average, it should be regarded as constituting the more backward classes. It may be conceded that in determin- ing the educational backwardness of a class of citizens, the literacy test supplied by the Census Reports may not be adequate; but it is doubtful if the test of the average of student population in the last three High School classes is appropriate in determining the educational backwardness. Having regard to the fact that the test is intended to determine who are educationallybackward classes, it may not be necessary or proper to put the test as high as has been done by the Committee. But even assuming that the test applied is rational and permissible under Art. 15(4), the question still remains as to whether it would be legitimate to treat castes or communities which are just below the State average as educationally backward classes. If the State average is 6.9 per thousand, a community which satisfies the said test or is just below the said test cannot be regarded as backward. It is only communities which are well below the State average that can properly be regarded as educationally backward classes of citizens. Classes of citizens whose average of student population works below 50% of the State average are obviously educa- tionally back-ward classes of citizens. Therefore, in our opinion, the State was not justified in including in the list of Backward Classes, castes or communities whose average of student population per thousand was slightly above, or very near, or just below the State average. It will be recalled that the Nagan Gowda Committee had recommended that the Lingayats should not be treated as Backward Classes. The State has decided otherwise, and in doing so, the State has taken the view that the figures arrived at by the Committee should be corrected to the nearest integer as, in the nature of things, says the order of July 10, 1960, it is not possible to attain absolute mathematical precision in making such assessments. That is how the State average was raised from (6.9 to 7 per thousand. Even after increasing the State average to 7, the position with regard to Lingayat community was that its average of student, population was 7.1 per thousand according to the Committee's calculations and according to the decision of the State 7, and yet the Lingayats as a community have been held to be an educationally backward class of citizens under the State order. This result has been achieved by adding,1 to the State average and deducting ,1 from the Lingayats' average. The Ganigas whose average of student population is 7 per thousand are likewise included in the list of Backward Classes. If the State average is 6.9 or 7, it would, we think, be manifestly erroneous to regard those communities as educationally backward whole student population ratio works at the same level as the State average. In regard to the Muslims, the majority view in the Committee was that the Muslim community as a whole should be treated as socially backward. This conclusion is stated merely as a conclusion and no data or reasons are cited in support of it. The average of student population in respect of this community works at 5 per thousand and that, in our opinion, is not so below the State average that the community could be treated as educationally backward in the State of Mysore. Therefore, we are not satisfied that the State was justified in taking the view that communities or castes whose average of student population was the same as, or just below, the State average, should be treated as educationally backward classes of citizens. If the test has to be applied by a reference to the State average of student population, the legitimate view to take would be that the classes of citizens whose average is well or substantially below the State average can be treated as educationally backward. On this point again, we do not propose to lay down any hard and fast, rule; it is for the State to consider the matter and decide it in a manner which is consistent with the requirements of Art. 15 (4). In this connection, it is necessary to add that the sub- classification made by the order- between Backward Classes and More Backward Classes does not appear to be justified under Art. 15(4). Art. 15(4) authorises special provision being made for the really backward classes. In introducing two categories of Backward Classes, what the impugned order, in substance, purports to do is to devise measures for the benefit- of all the classes of citizens who are less advanced, compared to the mo

  All muslim social backward by committee

regard to the Muslims, the majority view in the Committee was that the Muslim community as a whole should be treated as socially backward. This conclusion is stated merely as a conclusion and no data or reasons are cited in support of it. The average of student population in respect of this community works at 5 per thousand and that, in our opinion, is not so below the State average that the community could be treated as educationally backward in the State of Mysore. Therefore, we are not satisfied that the State was justified in taking the view that communities or castes whose average of student population was the same as, or just below, the State average, should be treated as educationally backward classes of citizens. If the test has to be applied by a reference to the State average of student population, the legitimate view to take would be that the classes of citizens whose average is well or substantially below the State average can be treated as educationally backward. On this point again, we do not propose to lay down any hard and fast, rule; it is for the State to consider the matter and decide it in a manner which is consistent with the requirements of Art. 15 (4). In this connection, it is necessary to add that the sub- classification made by the order- between Backward Classes and More Backward Classes does not appear to be justified under Art. 15(4). Art. 15(4) authorises special provision being made for the really backward classes. In introducing two categories of Backward Classes, what the impugned order, in substance, purports to do is to devise measures for the benefit- of all the classes of citizens who are less advanced, compared to the most

 Reservation exception

attractive, and so, it must be carefully examined. When Art. 15(4) refers to the special provision for the advancement of certain classes or scheduled castes or scheduled tribes, it must not be ignored that the provision which is authorised to be made is a special provision ; it is not a provision which is exclusive in character, so that in looking after the advancement of those classes, the State would be justified in ignoring altogether the advancement of the rest of the society. It is because the interests of the society at large would be served by promoting the advancement of the weaker elements in the society that Art. 15(4) authorises special provision to be made. But if a provision which is in the nature of an exception completely excludes the rest of the society, that clearly is outside the scope of Art. 15(4). It would be extremely unreasonable to assume that in enacting Art. 15(4) the Parliament intended to provide that where the advancement of the Backward Classes or the Scheduled Castes , and Tribes was concerned, the fundamental rights of the citizens constituting the rest of the society were to be completely and absolutely ignored, In this connection, it is necessary to remember that the reservation made by the impugned order is in

 Only 25 percent in university

shall not exceed a third of the total number of seats, and it has added that the principle of reservation may be adopted for a period often years. (p. 53). We have already noticed that the Central Government in its communication to the State has suggested that reservation for backward classes, Scheduled Castes and Scheduled Tribes may be up to 25% with marginal adjustments not exceeding 10% in exceptional cases. The learned Advocate-General has suggested that reservation of a large number o

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More than 50% reservation is proud on constitution

In this matter again.. we arc reluctant to say definitely what would be a proper provision to make. Speaking generally and in a ];road way, a special provision should be less than 50%; how much less than 50% would depend upon the relevant prevailing circumstances in each case. In this particular case it is remarkable that when the State issued its order on July 10, 1961, it emphatically expressed its opinion that the reservation of 68% recommended by the Nagan Gowda Committee would not be in the larger interests of the State. What happened between July 10, 1961, and July 31, 1962, does not appear on the record. But the State changed its mind and adopted the recommendation of the Committee ignoring its earlier decision that the said recommendation was contrary to the larger interests of the State. In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Art. 15(4), it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements; the extent of the problem must be weighed, the requirements of the community at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant considerations. Therefore, we are satisfied that the reservation of 68% directed by the impugned order is plainly inconsistent with Art. 15 (4). The petitioners contend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power conferred on the State by Art. 15(4). This argument is well-founded, and must be upheld. When it is said about an executive action that it is a fraud on the Constitution, it does not necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the constitutional authority conferred on the State in that behalf is struck down as being ultra, vires the State's authority. If, on the other hand, the executive action does not patently or overtly transgress the authority conferred oil it by the Constitution, but the transgression is covert or latent, the said action is struck down as being a fraud on the relevant constitutional power. It is in this connection that courts often consider the substance of the matter and not its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that notwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the constitutional power has been transgressed, th